A construction union official who allegedly made a death threat against a former colleague should face criminal charges with penalties of up to seven years in jail, according to a written submission by the counsel assisting the royal commission into unions.

The NSW branch of the CFMEU has also been criticised for failing to properly investigate the incident in the submission to be considered by Commissioner Dyson Heydon.

Brian Fitzpatrick told the royal commission into unions that Darren Greenfield had threatened to kill him. Photo: Wolter Peeters

Counsel assisting Jeremy Stoljar said the elements of the criminal offence of using a phone to make a death threat, with a penalty of seven years in jail, "appear to have been made out". The lesser offence of causing a menace carries a penalty of three years in jail.

The royal commission heard that on March 27, CFMEU official Darren Greenfield allegedly made a "violent and abusive" telephone call to Mr Brian Fitzpatrick, threatening to kill him. Mr Fitzpatrick said the call came after Mr Fitzpatrick raised concerns about the union's dealings with construction industry underworld figure George Alex. Mr Greenfield admitted to making an abusive phone call to Mr Fitzpatrick, but denied making any threats to kill him.

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Mr Stoljar said Mr Fitzpatrick's evidence was to be preferred. He submitted that Mr Greenfield had "committed several criminal offences and breached the CFMEU's published standards of behaviour in a most egregious way".

"There are marked differences between Mr Greenfield's version of this call and that of Mr Fitzpatrick," Mr Stoljar said.

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"It is highly unlikely that Mr Fitzpatrick, a seasoned and hard-nosed union official, would have responded to the call in the way he did had the call been as Mr Greenfield described.

"According to Mr Greenfield, he identified himself and did not make any death threat. Yet Mr Fitzpatrick was visibly shaken and upset. He told people straight away that he had received a death threat. The police were called."

CMFEU branch secretary Brian Parker, who the commission was told was hesitant to investigate the threat comprehensively. Photo: Nick Moir

Mr Stoljar said this behaviour was consistent with Mr Fitzpatrick having received the call he described.

"None of it is consistent with him having received a call of the kind Mr Greenfield describes," he said.

"The fact Mr Greenfield has given quite inconsistent accounts of the conversation at different times counts against the credibility of his evidence."

Mr Stoljar said Mr Fitzpatrick was marginalised and made the subject of repeated attempts to remove him from the union because he was prepared to speak out about his concerns in respect of the union's questionable behaviour.

His submission was also scathing in his criticism of CFMEU NSW branch, saying it had failed to properly investigate the alleged death threat.

The submission said branch secretary Brian Parker and state president Rita Mallia had "shied away from carrying out any rigorous or comprehensive investigation into the incident, avoided arriving at any properly considered conclusion, and generally sought to whitewash the incident rather than discipline Mr Greenfield appropriately".

"Ms Mallia and Mr Parker's failure to take any appropriate action in response to Mr Fitzpatrick's complaints about the death threat incident represented a dereliction of their duties as union officials, and fell short of the professional standards expected of them as officers of the CFMEU."